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ECtHR affirms that state has positive obligations to keep family together

Adoption of Portuguese children found to be a breach of Art 8

In the case of Soares de Melo v. Portugal (application no. 72850/14) the European Court of Human Rights has held, unanimously, that there had been a violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights. The case concerned an order for seven of Ms Soares de Melo's children to be taken into care with a view to their adoption, and its enforcement in respect of six of them.

The family with (eventually) ten children first became involved with Portuguese social services in 2005. There were concerns that the children were neglected primarily due to the parents' poverty and the father's absence from the home. Alarmingly, the mother was expected to undergo sterilisation by tubal ligation as part of a package of measures set out by social workers to improve the family's position. By 2012 nothing much had improved and the Portuguese state took measures to have the youngest seven children taken into care with a view to adoption. In the event, six children were taken into care (the seventh was not present at the family home).

The mother argued that the only reason to justify the adoption was the family's poverty; there was no evidence that either parent had abused the children and there were strong emotional ties between family members (para 77). Further, the family had not received adequate help and support (para 78) and it was unacceptable to expect the mother to agree to be sterilised (para 79). There were complaints about lack of contact with the children (para 80) and that the parents were prevented from being able to participate effectively in the proceedings (para 81). The final objection was that the family court relied solely on evidence from social workers and should have had expert evidence to assess emotional issues relating to the children (para 81).

The findings of the Court are set out from paragraph 88. It emphasises the principle that a child can only be removed from his family if it is 'necessary'. The State is under positive obligations to keep a family together. The Court found that the family had not been given sufficient support (para 106). With regard to the requirement that the mother be sterilised, the Court declared that to impose such a medical procedure on a person without their consent was incompatible with the freedom and dignity of that person. Less intrusive contraceptive arrangements could have been considered (para 111).

The Court found a clear violation of Article 8, ordered payment of EUR 15,000 in damages and that the Portuguese authorities reconsider the children's situation and take the appropriate action.

This case is significant in particular for the last 2 paragraphs of the concurring opinion of Judge Sajo:

"Thus, the rights of parents must be taken into account. The best interests of the child comes into play when the obligations inherent in parental rights are not observed by the parent or that it uses its rights abusively. The requirements of the Convention are not fulfilled if one ignores the importance of the need for parents and their children to "be together" (see in this regard the judgment Gnahoré cited above).

"The unilateral and absolutist understanding of the concept of the child's interest supremacy is ignorance of the need to interpret this notion harmoniously with other fundamental rights. Absolutism in the child's interest in reading can easily become administrative formalism source from the child protection services, formalism which in turn was quick to degenerate under cover of an alleged paternalistic benevolence of the state. The history of child maltreatment and discrimination is a story of public and private services provided by "saviours". To prevent this history from repeating itself, it is of utmost importance that the child welfare services fully respect the human rights of all, including parents, even when caring people are convinced that they only serve the best interests of children."

The original judgment, in French, is here. A summary is here.

An unofficial translation on the Child Protection Resource website is here.

Sarah Phillimore, barrister, St John's Chambers

30/3/16